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Raja Bahadur Kishori Ram Singh Vs. G.C. Agarwala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Misc. Writ No. 3783 of 1958
Judge
Reported inAIR1960All602; 1960CriLJ1281
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 195(1) and 195(2); Representation of the People Act, 1951 - Sections 90, 91, 92, 98 and 116B
AppellantRaja Bahadur Kishori Ram Singh
RespondentG.C. Agarwala and anr.
Advocates:P.M. Verma, Adv.
DispositionPetition rejected
Excerpt:
criminal - power of election tribunal - section 195(1) (b) and (2) - election tribunal constituted under representation of people act, 1951 - not functus officio after judgment - can file complaint against witness. - - sheddan singh, who was one of the defeated candidates, filed an election petition against the petitioner which was referred for decision to the election tribunal (sri g. therefore, even if an election tribunal be deemed to be a court when hearing an election petition, it ceases to be so after it has delivered its verdict under section 98. this, according to learned counsel, was precisely the position in the present case when sri g. the second argument of learned counsel must also fail......with great respect, i do not see anything curious in a situation where an order passed by a civil, criminal or revenue court making a complaint is appealable but an order passed by a specially constituted court not subordinate to any other, is non-appealable.i would consider far more curious a situation in which a false statement made before a civij, criminal or revenue court can lead to criminal proceedings against the offender under section 195 cr. p. c. but a similar statement made before an election tribunal is immune. in any case, the fact that the legislature thought it necessary to exclude a registrar or sub-registrar from the definition of 'court' is conclusive and shows that the word has a wider meaning than civil, revenue or criminal court. learned counsel also relied on.....
Judgment:
ORDER

S.S. Dhavan, J.

1. This is a petition under Article 226 of the Constitution praying for the quashing of an order dated 13-9-1958 passed by Mr. G. C. Agarwala, District and Sessions Judge, Kheri, acting as Election Tribunal, Aligarh, directing that a complaint be filed to the proper Court under Section 195 of the Code of Criminal Procedure against the petitioner for having committed perjury in violation of Section 193 of the Indian Penai Code.

2. The facts as stated in the affidavit supporting the petition are these : The petitioner was elected to the Uttar Pradesh Legislative Assembly from Iglas Constituency in the district of Aligarh in the last general election. Sheddan Singh, who was one of the defeated candidates, filed an election petition against the petitioner which was referred for decision to the Election Tribunal (Sri G. C. Agar-wala, respondent No. 1). The tribunal pronounced judgment on 6-1-1958 allowing the petition and setting aside the petitioner's election and declaring the election of the petitioner to be void.

(The petitioner's statement that the tribunal made recommendation that his election be declared void is obviously erroneous as election tribunals constituted under the Representation of People Act have the power themselves to declare an election void.) The tribunal simultaneously issued notices to both the parties to show cause under Section 479-A Cr. P. C., why they should not be prosecuted for false evidence. (Learned counsel for the petitioner stated, on a question from me, that this notice was issued by the tribunal at the time of delivering the judgment).

The petitioner filed an appeal to this Court against the judgment of the Tribunal which was dismissed on 29-4-1958. The petitioner states that he has made an application before the Supreme Court under Article 136 of the Constitution for special leave to appeal against the judgment of the High Court. This application is pending and leave has not yet been granted by the Supreme Court.

3. The petitioner filed an objection before the tribunal against the notice directing him to show cause why he should not be prosecuted for giving false evidence. The affidavit does not disclose the date on which this objection was filed nor was learned counsel for the petitioner in a position to enlighten the Court on this point. On 13-9-1958 the tribunal passed an order holding that it had no jurisdiction to hold an inquiry under Section 476 or 479-A Cr. P. C., and discharged the notice under Section 479-A.

However, it held that a complaint could be filed by the tritbunal under Section 195 Cr. P. C.,to the proper Court. Accordingly it directed that a complaint be filed against the Petitioner. In pursuance of that order a complaint was filed of which the Judicial Officer, Iglas, respondent No. 2, took cognisance and issued process against the petitioner as an accused person. He also fixed 16th December 1958 as the date of the hearing but the hearing was adjourned on that date on account of the petitioner's illness.

Aggrieved by the order of the respondent No. 1, which has initiated criminal proceedings against him in thy Court of the respondent No. 2, the petitioner has come to this Court for relief under Article 226 of the Constitution. He prays for a writ in the nature of certiorari quashing order of the respondent No. 1 directing a complaint to be filed, and for a writ of prohibition commanding the respondent No. 2 to forbear from proceeding with the hearing of the case against the petitioner.

4. Mr. Prem Mohan Varma, learned counsel for the petitioner, advanced the following arguments in support of the petition. First, he urged that the order directing the filing of the complaint was completely without jurisdiction. He contended that an election tribunal constituted under the Representation of People Act is not a court within the meaning of that word as used in Section 195 (1) (b) Cr. P. C., and that, therefore, the order of the respondent No. 1 and the complaint filed by him against: the petitioner, were without jurisdiction.

Secondly, he contended that, in any case, at the time of the making of the report Sri G. C. Agarwala had ceased to be the Election Tribunal and was only a private person in the matter o filing a complaint under section 195 Cr. P. C. Learned counsel contended that an election tribunal becomes functus officio as soon as it delivers its judgment under Section 98 of the Representation of People Act. He conceded that the Court may be revived when, on appeal, the High Court remands a case for retrial by an election tribunal, but he contended that the revival of the tribunal flows from the order of remand.

He relied on Section 116-B of the Representation of People Act which says that the order of the tribunal passed under Section 98 or 99 shall be final and conclusive. According to him this means that as soon as a tribunal gives its final decision, there is nothing further to be done by it and it ceases even to exist as a tribunal. Therefore, even if an election tribunal be deemed to be a Court when hearing an election petition, it ceases to be so after it has delivered its verdict under Section 98. This, according to learned Counsel, was precisely the position in the present case when Sri G. C. Agarwala, respondent No. 1, directed a complaint to be filed against the petitioner.

Thirdly, learned counsel contended that if the complaint be treated as one filed by a private person, the learned Magistrate could not have taken, cognisance of it without complying with the provisions of Section 200 Cr. P. C., read with Section 190 (1) and examining Mr. G. C. Agarwala, the complainant, on oath. Mr. Verma frankly conceded that, for the purposes of this petition, hewould argue on the assumption that the order of the respondent No. 1 directing a complaint to be filed against the petitioner could not be assailed on merits.

He stated that he was challenging the legality of that order and of the consequential complaint purely on the ground that the respondent No. 1 had no jurisdiction either to pass the order or to make a complaint. Mr. Verma submitted that there appeared to be a lacuna in the Representation of People Act of which the petitioner was entitled to take advantage. I shall now consider the three arguments of learned counsel on merits.

5. The first argument involves an interpretation of the word 'Court' used in Section 195 Cr. P. C. Sub-section (2) of that Section says

'In clauses (b) and (c) of Sub-section (I), the word 'Court' includes a civil, revenue or criminal Court but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.'

Mr. Verma contended that the word 'includes' in this Section does not have the effect of extending the meaning of the word 'Court' beyond Civil, revenue or criminal Courts. He argued that the word 'includes' must be interpreted as 'means', and it must be held that the word 'Court' in Clauses (a) and (b) is confined to civil, revenue or criminal courts.

He contended that the Election Tribunal did not come within any of these three categories of courts and therefore it had no jurisdiction to file a complaint under Section 193, I. P. C. against any witness who in its opinion had given false evidence before it. Learned counsel relied on a decision of Yorke, J. in Har Prasad v. Emperor, AIR 1947 AH 139, in which he held that an Election Judge under the provisions of the U. P. Municipalities Act was not a court within the meaning of Sections 476 and 195, Cr. P. C. The learned Judge observed as follows :

'These two Section s, which are in a sense inter-connected, speak of a civil, revenue or criminal Court,--and it certainly appears to me that an Election Judge cannot be brought within the ambit of the term 'civil, revenue or criminal Court'. It follows that the complaint made by the Commissioner as Election Judge was not one as could be entertained under Section 195 (I), Cr. P. C.'

Learned counsel contended that this judgment is authority for the proposition that the word 'Court' as used in Section 195, Cr. P. C. must be confined to civil, revenue or criminal Courts. I do not agree. It is true that Yorke, J. has made an observation to the effect that the complaint filed by the Commissioner as Election Judge constituted under the U. P. Municipalities Act could not be entertained by the Magistrate under Section 195 (I), Cr. P. C. But this judgment does not consider the effects of the word 'include' contained in the definition of the word 'Court' in Section 195 (2).

Even assuming that an Election Tribunal is not a civil, revenue or criminal Court it does not follow that the word 'Court', as used in Section 195 (I) (b) is confined to these three classes of Courts. In fact the use of the word 'includes' shows thatthe meaning of 'Court' has been deliberately made wider than the three categories mentioned above. If this were not so there would be no point in the Legislature saying, 'the term 'Court' includes a civil, Revenue or criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.'

The very fact that it was considered necessary to exclude a Registrar or Sub-Registrar from the definition of the word 'Court' proves that the meaning of this word was not intended to be confined to civil, revenue or criminal courts. I am fortified in this view by an observation of Sulaiman, J in Bilas Singh v. Emperor : AIR1925All737 , The learned Judge considered the significance of the word 'includes' in Section 195 (2) and observed as follows :

'It is noteworthy that by Section 47 of the Code of Criminal Procedure Amendment Act (No. XVIII of 1923) the word 'means' in Section 195 (2) has been substituted by the word 'includes' which suggests that the term 'Court' is intended to be a wider expression than a civil, revenue or criminal Court. If it had not a wider meaning it was wholly unnecessary to say 'but does not include a Registrar or Sub-Registrar, etc.' (Page 850 (of All LJ) : (at p. 740 of AIR)).

Daniels, J. took the contrary view as regards the effect of substituting the word 'includes' for 'means' but he expressed no conclusive opinion on this point but confined himself to saying :

'It seems to me doubtful whether the legislature in substituting the word 'includes' for 'means' in Section 195 (2) really intended to widen the definition. They may have thought that to say that the word 'Court' means a civil, revenue or criminal Court but does not include a Registrar or Sub-Registrar implies that a Registrar or Sub-Registrar would be a Court unless specially excepted.'

The learned Judge further observed that if the term 'Court' in Section 195 is given a wider meaning than civil, revenue or criminal Court, the curious result would follow that whereas an order of the civil, revenue or criminal Court making or refusing to make a complaint is subject to appeal and to a special appeal prescribed by Section 476, a similar order passed by special procedure Court would not be subject to any appeal. With great respect, I do not see anything curious in a situation where an order passed by a civil, criminal or revenue court making a complaint is appealable but an order passed by a specially constituted Court not subordinate to any other, is non-appealable.

I would consider far more curious a situation in which a false statement made before a civiJ, criminal or revenue Court can lead to criminal proceedings against the offender under Section 195 Cr. P. C. but a similar statement made before an Election Tribunal is immune. In any case, the fact that the Legislature thought it necessary to exclude a Registrar or Sub-Registrar from the definition of 'Court' is conclusive and shows that the word has a wider meaning than civil, revenue or criminal Court. Learned counsel also relied on a judgment of Mulla, J., in Arnbika Sahi v. Emperor : AIR1948All80 , in which the learned Judge observed as follows :

'No Court functioning as a Court is authorised to make a complaint except in accordance with the procedure laid down by the law in Section 476 Cr. P. C. It is evident, therefore, that the learned Small Cause Court Judge had no jurisdiction to make a complaint in the present case because the offences with which the applicants had been charged were not offences falling within the purview of Section 195, Cr. P. C.'

I do not understand how this observation (which is the only part of the judgment relied on by the learned counsel) has any relevance to the question whether the word 'Court' in Section 195 does or does not include tribunals other than civil, criminal or revenue courts. The learned Judge in this case had no occasion to consider the effect of the word 'includes' used in Section 195 (2), Cr. P. C. Learned counsel also cited an observation of the Supreme Court in Kuldip Singh v. State of Punjab AIR 1950 SC 391. The observation contained in paragraph 16, is as follows :

'In determining the Court or Courts to which an appeal will ordinarily lie, we have to see which Court or Courts entertain appeals from that class of tribunals in the ordinary way apart from special -notifications of laws that lift the matter out of the general class.'

6. I am of the opinion, after a perusal of the various Sections of the Representation of the People Act relating to the powers of the Election Tribunals and the procedure to be followed in the proceedings before them, that an Election Tribunal must be treated as a court within the meaning of that word as used in Section 195 (1) (b), Cr. P. C. Under Section 90 of that Act the procedure before an Election Tribunal shall, as nearly as may be, be in accordance with the procedure prescribed by the Code of Civil Procedure relating to the trial of suits. Under Section 91 parties may appear either in person or by a pleader duly appointed to act on their behalf.

Under Section 92 the tribunal is given the powers which are vested in a court under the Code of Civil Procedure, when trying a suit, in respect of (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposits of their expenses; (c) compelling the production of documents; (d) examining witnesses on oath; (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses.

It has also been given the power to summon and examine suo motu any persons whose evidence appearsto be material. This Section further says that an Election Tribunal shall be deemed to be a civil court within the meaning of Sees. 480 and 482 of the Code of Criminal Procedure. In other words: it has been given the power to punish an offender who is guilty of contempt of itself or of refusal to produce documents or take oath, or answer questions truthfully, or sign statements. Thus an Election Tribunal constituted under the Representation of the People Act has all the attributes of a court as laid down by the Supreme Court in Sri Virindei Kumar Satyawadi v. State of Punjab : 1956CriLJ326 . Their Lordships observed as follows :

'It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When the question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court'.

An Election Tribunal has all! the attributes of a court and I hold that the respondent No. 1 was a Court within the meaning of that word in Section 195 (1) (b), Cr. P. C. as defined by Section 159 (2). The first argument of learned counsel, therefore, fails.

7. Learned counsel, however, contended that, at the time when the respondent No. 1 passed the order directing the complaint to be made and when he made the complaint against the petitioner he had ceased to be a Court and was only a private person. He relied on Section 116-B of the Representation of the People Act, 1951, which lays down that the decision of the High Court on appeal and subject only to such decision, the order of the tribunal under Section 98 or Section 99 shall be final and conclusive.

In other words, it is contended that, after the Election Tribunal had performed the function attributed to it and brought it to a final conclusion, it had nothing further to do and became functus officio. In support of this argument learned counsel relied on the decision of the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque : [1955]1SCR1104 . In that case it was held that a High Court has the power under Art. 226 to issue a writ of certiorari for quashing of a decision of an Election Tribunal notwithstanding that it become; functus officio after pronouncing its decision.

It was further held that a writ of certiorari is directed against the record, and it is the record of the decision that has to be removed by certiorari the fact that the tribunal has become functus officio subsequent to the decision could have no effect on the jurisdiction of the High Court to remove the record. I do not see anything in the judgment o the Supreme Court to support the proposition the an Election Tribunal constituted under the Repre sentation of the People Act, 1951 ceases to exist to the purposes of Section 195 Cr. P. C. as soon as i has delivered judgment in the proceedings be fore it.

The Supreme Court in that case examined the contention of the respondents that the High Court became incapable of issuing a writ of certiorai against the decision of the Election Tribunal in the petition filed by Hari Vishnu Kamath because the tribunal was an ad hoc body set up for the determination of a particular election petition and had become functus officio when it pronounced its decision, and that thereafter there was no authority in existence to which the writ could be issued. The Supreme Court held that even in such circumstances the High Court could issue a writ of certiorari because such a writ is always directed against the record.

The Supreme Court appears to have assumed, for the purpose of its decision, that the respondents' contention that the Election Tribunal had become functus officio must be deemed to be correct. It does not necessarily follow that the Tribunal had in fact ceased to exist as soon as it delivered its judgment. As far as I can see the Supreme Court did not even consider the question when an Election Tribunal constituted under the Representation of the People Act, 1951 ceases to exist in law after it has pronounced its decision.

8. On an examination of the provisions of the aforesaid Act it appears that the Tribunal does not tease to exist, at any rate for certain purposes. For example, as I have stated above, it may have to retry a case on remand by the High Court in appeal. It could not do so if, as is contended by learned counsel for the petitioner, it becomes functus officio and ceases to exist immediately after the delivery of its judgment. Further, it has been given the power, under Section 92, in the matter of enforcing the attendance of witnesses and of examining witness on oath.

The power to examine a witness on oath implies the power to ensure that every witness shall speak the truth. Learned counsel for the petitioner conceded that the Election Tribunal would be rendered completely helpless if witnesses before it could not be compelled to state the truth on pain of being prosecuted for perjury. Therefore, an Election Tribunal obviously has all the powers which are ancillary to or necessary for the proper exercise of its powers under Section 92 of the Representation of the People Act. If, in the opinion of the Tribunal, any witness appears to have committed perjury, it has the power to take the necessary penal proceedings against that witness. If it docs so its powers as a court continue until it has performed its duties in this respect.

9. In the present case the Election Tribunal felt that the petitioner had given false evidence. It, therefore, issued notice to him to show cause why he should not be prosecuted for this offence. This notice was issued simultaneously with the delivery of the judgment in the election petition itself. It is not in dispute that on that date the Tribunal did exist, nor is it disputed that the notice was issued by it in its capacity as tribunal in that ease.

10. Learned counsel contended that in any case the Tribunal must be deemed to have ceased to exist when the High Court delivered its judgment on 29th April, 1958 dismissing the petitioner's appeal. Therefore, the Tribunal had become functus officio before the final decision in the proceeding? initiated by the notice issued against the petitioner and that any proceedings after 29th April, 1958 were completely without jurisdiction. I am afraid I do not agree, As long as the Tribunal had not eompletcd proceedings under the Act, or any other proceedings which directly flowed from those proceedings and which were necessary for the proper enforcement of its power under the Act, it was not functus officio. The second argument of learned counsel must also fail.

11. Thirdly, learned counsel contended that even if the complaint against the petitioner be deemed to have been filed by Sri G. C. Agarwala as a private person, the consequential proceedings now pending before the Judicial Officer are without jurisdiction as the procedure prescribed by Section 200, Cr. P. C. has not been complied with. In view of the fact that I have held that the complaint was filed by a Court of competent jurisdiction it is not necessary for me to decide this point.

I shall confine myself to the observation that the argument appears to be of doubtful validity. The complaint itself was within the cognizance of the Magistrate. All that can be said is that before issuing summons to the petitioner, he did not follow the procedure prescribed by Section 200. I am doubtful whether non-compliance with Section 200 would entitle the petitioner to a writ of prohibition stopping further proceedings, but as stated above, it is not necessary for me to give a considered decision on this point.

12. The petition is rejected.


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